Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fourth Chamber)

20 May 1999 (1)

(Failure by a Member State to fulfil obligations - Failure to transpose Directive 92/101/EEC)

In Case C-185/98,

Commission of the European Communities, represented by Maria Patakia, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by Aikaterini Samoni-Rantou, Special Legal Adviser, Second Division, in the Special Community Legal Service of the Ministry of Foreign Affairs, and Nana Dafniou, Legal Assistant, Second Division, in that Service, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration that, by failing to adopt and, in the alternative, by failing to communicate to the Commission, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council

Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital (OJ 1992 L 347, p. 64), the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and that directive,

THE COURT (Fourth Chamber),

composed of: P.J.G. Kapteyn (Rapporteur), President of the Chamber, J.L. Murray and H. Ragnemalm, Judges,

Advocate General: J. Mischo,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 11 February 1999,

gives the following

Judgment

1. By application lodged at the Court Registry on 15 May 1998, the Commission of the European Communities brought an action under Article 226 EC (ex Article 169) in which it sought a declaration that, by failing to adopt and, in the alternative, by failing to communicate to the Commission, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital (OJ 1992 L 347, p. 64) ('the directive'), the Hellenic Republic had failed to fulfil its obligations under the EC Treaty and that directive.

2. Under Article 3 of the directive, Member States were required to adopt before 1 January 1994 the laws, regulations and administrative provisions necessary to comply with that directive and forthwith to inform the Commission thereof.

3. Having received no notification from the Greek Government that it had transposed the directive, the Commission put that Government on formal notice, by letter of 13 April 1994, to submit its observations on the matter.

4. Since the Greek Government did not reply to that letter, the Commission sent to it, on 28 May 1996, a reasoned opinion restating the observations contained in its letter of formal notice and calling on it to comply within two months of notification.

5. By letter of 13 March 1997, the Greek authorities replied to the reasoned opinion, informing the Commission that the Presidential Decree intended to transpose the directive was ready and required nothing more than to be signed by the ministers responsible and examined by the Council of State.

6. Having received no subsequent information on the transposition of the directive, the Commission decided to bring the present action.

7. The Commission submits that the Hellenic Republic did not transpose the directive within the period prescribed and that it has accordingly failed to fulfil its obligations under the Treaty and the directive.

8. The Hellenic Republic does not deny that the directive was not fully transposed within the period prescribed. It does, however, point out that the text of the Presidential Decree adapting national legislation to the directive was awaiting only the opinion of the Council of State, following which it was to be submitted to the President of the Republic for his signature.

9. In view of the fact that the directive was not transposed within the period prescribed, the action brought by the Commission must be regarded as being well founded.

10. It must accordingly be held that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with the directive, the Hellenic Republic has failed to fulfil its obligations under that directive.

    Costs

11. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Hellenic Republic has been unsuccessful and the Commission has applied for costs, the Hellenic Republic must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber)

hereby:

1. Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital, the Hellenic Republic has failed to fulfil its obligations under that directive;

2. Orders the Hellenic Republic to pay the costs.

KapteynMurray Ragnemalm

Delivered in open court in Luxembourg on 20 May 1999.

R. Grass P.J.G. Kapteyn

Registrar President of the Fourth Chamber

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1: Language of the case: Greek.